ant case the intention to mislead the courts as to the actual ownership of the property for the purpose of avoiding its confiscation was not established in any proceedings.
53. A further resolution by the Supreme Court required the civil courts to have regard to the entirety of the marital property and, taking account of the presumption of equality of spouses' portion, determine the actual size of each spouse's portion which was to include both items liable to confiscation and those not liable to confiscation (see paragraph 38 above). It therefore appears that the first applicant could legitimately rely on those provisions to claim an equal share of the marital property.
54. In the light of the above considerations, the Court finds that the first applicant's claim to the spousal portion and the second applicant's claim to the computer had a basis in the statutory law, such as provisions of the Russian Civil and Family Codes, and the case-law codified by the Supreme Court. They could reasonably and legitimately argue that the confiscation order of 14 August 2001 amounted to an interference with their right to peaceful enjoyment of possessions and the Court is called upon to determine whether their claim was examined by the domestic courts in compliance with the requirements of Article 1 of Protocol No. 1.
(b) Whether the applicants' claim was examined in accordance with the requirements of Article 1 of Protocol No. 1
55. Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest (see, as a recent authority, Broniowski v. Poland [GC], No. 31443/96, § 134, ECHR 2004-V). The parties did not take a clear stance on the question of the rule of Article 1 of Protocol No. 1 under which the case should be examined. The Court considers that there is no need to resolve this issue because the principles governing the question of justification are substantially the same, involving as they do the legitimacy of the aim of any interference, as well as its proportionality and the preservation of a fair balance.
56. The Court emphasises that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be "lawful": the second paragraph recognises that the States have the right to control the use of property by enforcing "laws". Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, among other authorities, Baklanov v. Russia, No. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, No. 58254/00, § 33, 24 March 2005).
57. The Court notes that the specific legal provisions for the confiscation measure were not mentioned in the Moscow City Court's judgment of 14 January 2001 or in any other domestic decisions. This omission requires it to conjecture as to the legal basis for the interference. However, even though the decision itself did not refer explicitly to the provisions that formed its basis, it may be understood that the confiscation order was im
> 1 2 3 ... 7 8 9 ... 11 12 13
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
